GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS Writ Petition was referred by a learned judge of this Court to a Division Bench as the learned judge felt that the question raised involved the correctness of the decision of our learned Brother Eradi J. in a judgment, in OP. No. 2683 of 1975, copy of which has been produced as Ext. P6, and also the judgment of a Division Bench to which one of us (myself) was a party, in W. A. Nos. 35 and 49 of 1979. The learned judge expressed the view that especially after the promulgation of the Common Service Rules, 1977, under the Panchayats Act, the question considered and dealt with in these judgments, required a fresh look and therefore it might be desirable to have the matter examined by a larger Bench. On the facts disclosed, no case for a re-examination has been made out in these cases. We shall therefore state the facts and proceed to dispose of the cases on the merits. The first writ petitioner was appointed on 1-3-1954 as a part-rime clerk in the Mylom Panchayat. He later on matured as a full-time clerk and was designated as a full-time Assistant from 1-1-1956. On 23-2-1962 he was provisionally promoted as Executive Officer, in the Panchayat. On 21-1-1972, he was appointed as Head Clerk. The second petitioner was appointed as Head Clerk on 11- 9-1971 and the third petitioner was so appointed on 13-3-1972. All these appointments were before the Common Service Rules. The staff pattern which regulated the various grades in the Panchayats at that time and before the Common Service Rules, is evidenced by Ext. P1. THIS has been produced by the petitioners to show that in this staff pattern that existed till the Common Service Rules, there was no post of the Head Clerk. THIS was created by a G. O. dated 6-11-1968 by which the posts of Head Clerks were sanctioned to the Special Grade Panchayats and the three I Grade Panchayats of ponnani, Kollengode and Payyannur. THIS G. O. ordered that the senior-most assistants in the Panchayats would be designated as Head Clerks by upgrading one existing post of Panchayat Assistant. Ext. P8 is the provisional list of Assistants of the Quilon District and Ext. P9 is the provisional list of Head Clerks in that District. These proceeded on the footing that the post of Head Clerks is a separate and independent category from that of an Assistant and is a promotion post vis-a-vis the latter. The petitioners are aggrieved by the preparation of these lists and by the recognition of Head Clerks as a separate and independent category, and have accordingly prayed in this writ petition to quash the seniority list of Head Clerks in Panchayats in the Revenue District of Quilon (Ext. P9), and to issue a writ of mandamus directing the respondents to prepare a seniority list of Head Clerks as on 1 4-1977 in the Panchayats in the Quilon district in accordance with the inter se seniority of the personnel as fixed in the combined gradation list of Assistants as on 1-4-1977 (Ext. P8), and to make appointments and promotions is accordance with the said seniority list; and to declare sub-rule 3 of R. 3 of the Kerala Panchayats (Common Service) Rules, 1977, ultra vires and unconstitutional.

(2.) COUNSEL for the petitioners placed strong reliance on the previous judgment of the Division Bench of this Court in W. A. Nos. 35 and 49 of 1979, which, after considering the background and the circumstances leading to the creation of the posts of Head Clerks in Panchayats, and the promulgation of the Common Service Rules, observed that the posts of Head clerks were created only by upgrading certain posts of Assistants in some of the Panchayats, and that both in an exposition made by the Government on the executive side, and also in an exposition made by Eradi J. in a judgment on the judicial side, it had been stressed that the upgradation of the posts of panchayat Assistants into Head Clerks in the higher time-scale would not necessarily be a promotion, nor would it constitute the posts of Head Clerks into distinct and separate posts, independent from the posts of Panchayat assistants. The correctness of this judgment and of the judgment of Eradi J. referred to therein, was attacked before the learned judge before whom this writ petition came up, and it was pointed out in the reference order that the question raised required examination by a larger Bench.

(3.) WE may now briefly refer to the two judgments, namely, that of my learned Brother Eradi J. and that of the Division Bench in W. A. . Nos. 35 and 49 of 1979. A copy of my learned Brother Eradi J. 's judgment has been filed as Ext. P6. That judgment notices the creation of the posts of Head clerks, the objection raised by the Examiner of Local Fund Accounts to the said creation based on R. 28-A of the Kerala Service Rules, and the Government's clarification and reply to the objection, which stated that appointments of panchayat Assistants to -the posts of Head Clerks shall not be regarded as a promotion and are governed by R. 30 of the Kerala Service Rules rather than r. 28a. The learned judge, after noticing R. 28-A of the Kerala Service Rules, observed that the said Rule was not satisfied, as the writ petitioners before the learned judge had not been promoted from their original posts of Assistants into another post carrying a higher time-scale of pay. All that had happened was that the posts which they were occupying were upgraded as the posts of Head clerks. The learned judge further observed that the fact that the designation of the existing post was altered into that of a Head Clerk would not help the writ petitioners (Panchayat Assistants) to contend that they had been promoted from their original posts. These principles, stated by the learned judge, was, after an elaborate examination, accepted by the Division Bench in W. A, Nos. 35 and 49 of 1979. The decision of the Full Bench of this Court in N. G. Prabhu v. Chief Justice (1973 (2) SLR. 251) supports the principle of these rulings that the upgradation of a post does not amount to a promotion.